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Getz v. Del E. Webb Corp.

OPINION FILED MAY 14, 1976.

DONALD GETZ, PLAINTIFF-APPELLANT,

v.

DEL E. WEBB CORPORATION ET AL., DEFENDANTS-APPELLEES.



APPEAL from the Circuit Court of Cook County; the Hon. WALTER J. KOWALSKI, Judge, presiding.

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:

Plaintiff brought this action to recover damages for injuries received as a result of a violation of the Structural Work Act. (Ill. Rev. Stat. 1969, ch. 48, par. 60 et seq.) At the close of plaintiff's case in chief the trial court granted a motion for a directed verdict in favor of all defendants. On appeal plaintiff contends that (1) it was error for the court to direct a verdict in favor of defendants, (2) the court abused its discretion by denying plaintiff's motion for a change of venue *fn1 and (3) the court erred by refusing to admit certain safety standards into evidence.

Plaintiff, a sheet metal worker, was injured when he fell from a movable scaffold at a construction site in Oakbrook, Illinois, on October 12, 1970. He was employed by Federal Ventilating Company, a subcontractor of L.C. Kohlman, Inc., the heating and ventilating contractor at the site. He brought this action under the Structural Work Act (popularly known as the "Scaffold Act") against the Del E. Webb Corporation, the general contractor, Del E. Webb Properties, Inc., and the Oakbrook Development Company, joint venturers who owned the property under construction, Alfred Shaw & Associates, the architect, and C.A. Metz & Associates and R.G. Burkhardt & Associates, consulting engineers.

The record reveals that at the time of the accident plaintiff and his foreman had been working for about two days on the sixth floor of the building marking connecting holes in duct work which hung approximately 13 feet from the floor. Marking ducts was a two-man operation. Plaintiff's foreman remained on the floor and determined from a blueprint where the ducts were to be placed, while plaintiff stood on the scaffold and marked the outline of a hole on the duct using a form called a template.

A "Baker" scaffold was used by plaintiff. It is made of tubular steel with a piece of plywood on the top. Its height could be adjusted to two or three levels by the use of four locking pins, and it was at its maximum height of six feet when the accident occurred. The scaffold had four-inch wheels on each corner. There were locks on them, but they were not being used. No guard rails or protective devices of any kind were being used.

After the marking operation took place, plaintiff would kneel down on the scaffold and tell his foreman it was all right to be moved. His foreman would then pull the scaffold to the next position.

Just before he fell, plaintiff had finished marking a hole and was going to kneel down on the scaffold. He was halfway between kneeling and standing when his foreman started to pull the scaffold. Plaintiff yelled for him to stop, but it was too late, and plaintiff fell backwards onto the concrete floor.

Plaintiff called an expert witness to testify as to certain standard customs and practices in the building industry with regard to the use of scaffolds. These standards apparently did not call for the use of guard rails on scaffolds under ten feet in height.

A superintendent of Federal Ventilation, plaintiff's employer, testified that it was against company policy for a worker to kneel on a scaffold while it is being moved.

The testimony of one of plaintiff's witnesses, Richard A. Frolik, is crucial to our determination of the issues raised in this appeal. Frolik was project superintendent for the Del E. Webb Corporation at the building at which plaintiff was injured. It was his duty to coordinate the work among the various subcontractors working at the construction site, that is, he scheduled their work and saw to it that their jobs were performed in accordance with relevant standards and specifications. Fifty percent of his time was spent in the field making sure that the workers were performing their duties. Frolik's job was to see that the subcontractors performed their tasks according to the plans; he did not supervise the methods they used to accomplish their jobs, and he had no particular knowledge of the skills used by any building trade. Frolik testified that he held weekly safety meetings with the superintendents of the various subcontractors working on the project. He had no personal contact with plaintiff. The only circumstances mentioned by Frolik under which he would be empowered to stop work on the building were the financial incapacity of the contractor or if tradesmen became sloppy and were "ruining other people's work," in which case he could halt construction and hire replacements.

In arguments before the trial court on their motion for a directed verdict, it was defendants' basic position that plaintiff's evidence merely indicated a misuse of a safe scaffold. Defendants also argued that plaintiff's case was directed, in reality, only against Del E. Webb Corporation.

In response plaintiff conceded that:

"Admittedly, there's been no mention of Burkhardt & Associates, and it was shown that Metz were consulting engineers who were long gone by the time Donald Getz got on the job."

However, as to the other defendants, plaintiff asserted that he introduced sufficient evidence to meet the standard set in Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504. Specifically, plaintiff argued that his proof showed that these defendants had charge of the work and that they willfully violated the Act in that they knew or should have known of plaintiff's improper use of the scaffold. (See Kennerly v. Shell Oil Co., 13 Ill.2d 431, 150 N.E.2d 134.) Plaintiff further pointed out that "contributory negligence" is ...


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